During the two-month trial I was home only long enough to eat and sleep. I might have prevailed with a different judge, but as Wechsler pointed out in the many columns he wrote after the trial was over, Davidson sided with the assistant district attorney at every turn. Some of the rulings were truly bizarre, such as the one that prohibited me from calling a lighting expert to challenge the testimony of a prosecution expert, the deputy director in charge of the engineering division of the New York City Bureau of Gas and Electricity, who claimed that the backlighting from the bank’s plate-glass window on the dark, shadowy side street where the crime occurred was sufficiently bright for the purposes of identifying the shooter. By contrast, my expert, a Broadway lighting designer, would have testified that the killer’s face would have been in a shadow, making his features indistinguishable.
Equally outrageous, not until twenty-two days after the start of Tony’s third trial did Sawyer produce the names and interviews of a number of witnesses who talked to the police during the 1967 investigation, some of whom told different stories about what happened. One witness, according to a police report, said that someone else killed Sergeant Kroll. Another person confessed to the crime. Barely able to prepare for each successive day of the trial, Dan Meyers and I didn’t have the time or the resources to chase down any of the people on that list. The prosecutor said in a pat way that his office and the police had checked out everyone and everything on the list and there was nothing of merit for the court to consider, which Davidson quickly accepted as conclusive enough to rule that what the authorities had done was sufficient.
To defend Tony, before the trial Dan and I had tried to revive the alibis that had been disavowed after Michael Quinn and his wife were thrown in jail as material witnesses. To do that we visited the Quinns at home in Woodside, Queens, and at brother Patrick’s bar to see if they would consider testifying that Tony was at their apartment on the night of the crime, and explain why they disavowed their statements. Concerned that their silence would lead to Tony’s conviction, the Quinns agreed to risk the prosecutor’s ire. Davidson, however, did what he could to frustrate us. He cleared the courtroom the moment I called Michael Quinn to the witness stand, and announced that he would not allow Quinn’s testimony if it included an admission that he’d committed perjury—even if, as we claimed, he had been forced to disavow the alibi by an assistant district attorney. Davidson reacted immediately. He sent for another assistant district attorney to open a prosecution investigation against Michael. I objected, and the colloquy that resulted was typical of our dynamic:
MR. STEEL: Your Honor, may I state that, for the record, we have other witnesses whose testimony you are affecting by this procedure.
THE COURT: Will you sit down or I’ll have you thrown out of this courtroom.
MR. STEEL: That is an open threat to every other member of the Quinn family who wants to testify in this case. You are threatening them all. It is the most outrageous thing I have ever heard.
THE COURT: Do you think it might be necessary for this screaming person to be put in restraint?
MR. STEEL: Do that, Your Honor. Do that.
THE COURT: I have never heard anything like that.
MR. STEEL: I have never heard anything like you, Your Honor. In a murder trial, you are threatening the witnesses of the defense openly in court. I have never heard of a thing like that.
THE COURT: Why don’t you behave yourself? You will have a stroke. Everybody is gathered around you; they are afraid you are going to come up and attack me.
MR. MEYERS: There is nobody afraid.
MR. STEEL: Nobody is going to attack Your Honor. You attack the dignity of this court by being in court.
And with that Judge Davidson held me in summary contempt.
Looking back now at what I said, I can see that I had crossed that invisible line between rational advocacy and an emotional response to outrageous provocation. The Quinns were deeply shaken, and I was beside myself. Nonetheless the Quinns decided not to back down. They courageously testified that Tony was at their apartment on the night of the crime, and withstood the pounding on cross-examination from Sawyer, delivered with Davidson’s full approval.
Even so, despite Davidson’s hounding our every move, I sensed the warmth in some of the jurors’ eyes, and that some were rooting for us. Also some of the jurors appeared impressed that William Styron testified for Tony as a character witness, as did Tony’s grandmother. Tony also testified in his own behalf, withstanding not only Sawyer’s cross-examination but Davidson’s endlessly biased rulings in favor of the prosecution.
To undercut the Quinns’ alibi testimony further after I rested our defense, Davidson allowed Gino Gallina to testify that he had broken no laws or rules by imprisoning the Quinns until they renounced their alibis because he had an immigration officer threaten to deport Michael’s wife, Giselle. Adding insult to injury, Davidson protected Gallina from cross-examination with regard to his blatant wrongdoing.
After both sides rested and Sawyer and I summed up, Davidson gave a one-sided version of what the witnesses had testified to. After his jury charge, the jurors debated for three days, evenly split between guilty and not guilty. When the courtroom door was open to the back area where the jury room was, we could hear the jurors’ raised, sometimes angry voices. Prodded by Davidson, after the all-white jury reported it was hung, the jurors finally compromised on a manslaughter verdict. Apparently satisfied, Davidson shortly afterward released me from contempt.
When I saw Tony in the Tombs that evening after the verdict, he gave me a big hug and assured me that we would overcome what had happened to both of us: “No injustice this great can stand.”
“I’ll do whatever it takes to get this overturned,” I said.
“I know you will,” Tony replied. “I’ll stay strong.”
Two months later Davidson sentenced Tony to the maximum ten-to-twenty years. On his way upstate to prison, he remained unshaken.
I couldn’t say the same for myself. I had come a long way from that ceremonial courtroom eight years earlier with the visage of Chief Justice Taney and the legacy of Dred Scott bearing down on me. But in that time I had learned that it did not take a ruling that blacks would be forever slaves for other judges to let them know that their status still remained in slavery’s shadow.
16
Auburn Prison and Life in the Hamptons
“You don’t catch hell because you’re a Democrat or a Republican,” Malcolm X said in his 1963 speech “Message to the Grassroots.” “You don’t catch hell because you’re a Mason or an Elk, and you sure don’t catch hell because you’re an American; because if you were an American, you wouldn’t catch hell. You catch hell because you’re a Black man.”
That speech was well known among the black activists of the 1960s. I doubt there was anyone among the African American leaders of the Attica uprising who hadn’t read it. “Message to the Grassroots” was about the race problem in America. It referred to what Malcolm X deemed the white co-opting of the 1963 March on Washington. More generally the speech argued that there had been a failure in the fight against racism. Malcolm X claimed that the rhetoric of nonviolence hadn’t worked, and that it never would. He said push had come to shove and it was time to paint the streets red. “Revolution is bloody,” he told the parishioners of Detroit’s King Solomon Baptist Church. “Revolution is hostile, revolution knows no compromise, revolution overturns and destroys everything that gets in its way.”
This is the same speech in which Malcolm X juxtaposed the figures of the “house Negro” and the “field Negro.” He jabbed a linguistic finger at the former, explaining that when the house Negro talked about America, he used the words “we,” “us,” and “our.” The house Negro was oblivious to the blunt fact that he neither was nor ever would be invited to participate in the great American dream. Meanwhile the field Negro was just looking for a way out. For some that meant drugs and for others, revolution. Malcolm X went further in his
taxonomy of racism, talking about Uncle Toms and the way Movement people patted themselves on the back for the so-called victories of the civil rights struggles while the house and field Negroes alike got no relief. The triumphs of the Movement were legal half measures called coups, according to Malcolm X.
“Uncle Tom” was never a term I used, but Attica for sure was not taken over by the spirit of complacency ascribed to the house Negro in “Message to the Grassroots.” The sentiment there was decidedly militant, which among some prisoners translated into anti-white. I didn’t personally experience it that way, because the leadership saw the observers as coming to their aid. I thought about Malcolm X in the Attica yard one night during the takeover, when the place seemed to be vibrating with danger. Maynard had not reappeared to stay with me and a small group of observers had remained at the negotiating table while the rest of the group had retreated to safety with William Kunstler and Bobby Seale, who had joined the observers that day and talked to the inmates without making any concrete suggestions. Quickly Seale left the prison, saying he had to talk to his Panther comrades to get instructions, never to return. To fill the void left by Seale’s departure, one of our observers took the mike and told the prisoners about the twenty-eight points we had negotiated. But when he added that the local prosecutor planned to charge those who had committed crimes to the full extent of the law, a cry of rage rose up. I shuddered as a wave of panic swept over me. Would we become hostages ourselves for being such miserable failures on the key issue of amnesty? But no. Kunstler, who returned after escorting Seale out, soothed the milling crowd. As quickly as we could, we left the yard to rejoin the other observers, most of us never to return again.
Thinking about that night later, I told myself that I was not a radical, contrary to the way some of my friends, family, and even Tom Wicker viewed me. To them I had gone beyond mainstream advocacy for an oppressed minority to justifying their militant rebellion. The reality, however, was different. Certainly I reached the point of understanding that the prison authorities had pushed the inmates past the breaking point and were responsible for what had occurred. But I had never advocated rebellion or armed resistance. I thought rebellion and armed resistance were bound to fail with America’s large and relatively satisfied middle and working classes, virtually all of whom viewed blacks and white radicals as a danger to their way of life. Nor, in my mind, were understanding violence and justifying it the same thing. There was no justifying taking guards prisoners, as they were already trapped in the same oppressive system themselves. I may have lived, at least in my mind, on both sides of the racial divide, but in actuality on these issues I lived on one side only. While I supported civil disobedience as a form of militant nonviolence, I was not willing to take hostages or bomb buildings, and wasn’t willing to say that those who did such things stood on firm moral ground. I wasn’t willing to give up my class prerogatives either. I liked going to the theater, and I liked having a weekend place at the beach. So while I was willing to put myself in harm’s way, if I thought it would make a difference, or to work endless hours to try for a particular outcome in a case that would matter in the bigger picture of racial injustice, it was easier for me to do that than it was for most. I could step out of the struggle into the comfort of a bourgeois life, as I did almost every night. I didn’t have to worry about how I was going to pay the bills. I worked like a dog, but having Bessie Warner as a grandmother smoothed the way. I opposed the status quo but was unwilling to burn the house down to try to create a new world.
* * *
Several months before Attica, I hit a wall. I was in dire need of a break. It was January 1971. Kitty and I both needed to get away. The time had come, and we were going no matter how tight my work schedule. Puerto Rico was our chosen destination, and we had planned to fly down and check out a little resort that a friend had recommended, a quiet place off the beaten path. Then events already in motion got in the way. On November 4, 1970, there had been an uprising at the state prison in Auburn, New York. Like Attica, it was called a “correctional facility,” but that was and remains a misnomer since no one was getting corrected there. Auburn was severely overcrowded. The prisoners were paid pennies for their work. The food was inedible. Medical care was virtually nonexistent, as were the programs that prisons were supposed to offer by way of rehabilitation. During the uprising thirty hostages—all of them prison employees—were taken and then released, completely unharmed, in return for a pledge that there would be no administrative or physical retaliation against the leadership of the uprising. That pledge was immediately broken by the prison administration.
By the time I was contacted about the situation at Auburn, the prisoners who had taken part in the uprising were in desperate need of help. After being moved out of Auburn, the six key leaders had been indicted for a long list of felonies and then returned to the prison where the alleged crimes took place to await trial. The venue for the trial was Auburn’s courthouse—not a particularly inmate-friendly venue. A young lawyer named Jeffrey Glen, from Mobilization for Legal Services, had been trying to put together a legal team to help the Auburn Six, who were not only segregated from the rest of the prison population but placed in “the Tank,” where they reported continuous abuse at the hands of guards in retaliation for the uprising. Glen initiated a federal case against the then newly minted state commissioner of correctional services, Russell Oswald, who was either unaware of the torture being inflicted on the Auburn Six or didn’t care.
“It isn’t only that they’re not going to be able to participate in their own defense,” Glen told me. “They may not survive what’s happening to them in the Tank.”
What came next I knew all too well from my time at the NAACP. The lawyers had a lot of heart, but they didn’t have much trial experience. Without a Movement lawyer, they were in over their heads. Meanwhile, lives were in danger.
The judge who would try the case upstate was Edmund Port, a former United States attorney. It wasn’t his job to protect criminals from the penal system. In general judges were not very friendly to prisoners. When inmates took over the prisons selected to punish them, they couldn’t expect much relief from the court. Asked to come and try the case, I found it impossible to refuse. That said, I definitely felt as if I was betraying a loyalty—namely mine to Kitty. I tried my best to wriggle out of it.
“You can squeeze it in,” Glen said. “Once you get us up and going and we see what the drill is, we’ll be fine.”
I couldn’t say no.
On March 9 we started the nonjury trial before Judge Port. On the first day Glen and another lawyer, Elizabeth Fisher, called to the stand three of the Auburn Six, all of them named as plaintiffs against Commissioner Oswald. After brief testimony on the conditions in the Tank, the deputy state attorneys drilled into the prisoners, subjecting them to long cross-examinations. While this was happening, I managed to talk by telephone to a psychiatrist, William Tucker, who had seen our lead plaintiff, Robert Clark, on a few occasions and had inspected conditions in the Tank himself. Despite Tucker’s strong reluctance to testify against the state, he agreed to come to the courthouse, and I put him on the stand.
“Did you treat Robert Clark?” I asked Tucker.
“Yes, I treated Clark a few times after the uprising and before he was shipped to Attica.”
Then, in a sideways retreat, if there can be such a thing, Tucker lurched into a sort of bureaucratic avoidance, explaining that the guards were having a hard time carrying out the prison rules, and that, to compound matters, there was a great deal of revolutionary activity on the part of the prisoners. I let him talk it out before confronting him: “Didn’t you tell me yesterday that an atmosphere of terror prevailed?”
“Yes,” he admitted.
The otherwise impassive judge peered down from the bench, clearly taking that statement in—it had left a mark.
The Auburn Six had been brought into court in shackles, but there was nothing unusual about that or the fact tha
t we only had time to prepare them to testify in a holding cell behind the courtroom and then, one by one, hustled them to the stand to tell their stories about being stripped naked twenty-four hours a day and locked in freezing cells, and how the windows were left open twenty-four hours a day. It was the middle of winter in upstate New York. We got them to talk about the near-starvation rations they were offered under the glare of lights that were never turned off. On and on it went. It was a bleak story—guards banging their sticks on the bars to wake them at all hours, unnecessary “cavity” searches, and other acts of savagery. They were even tear-gassed. It wasn’t an easy litany to hear—not for those of us who believed the prisoners. It wasn’t easy for the assistant state attorneys to hear either; they didn’t want the vile truth of what had happened aired in court.
“In that environment,” Tucker said, “the prisoners can’t participate in their defense. Forget about criminal trials. We’re dealing with people who aren’t sure they’re going to survive.”
I could sense that the judge knew which way the wind was blowing after he heard Tucker’s testimony, so I tried to plant the idea that the Auburn Six should be transferred to prisons closer to New York City. The attorneys working on their cases had a lot to do, and limited budgets. If the six were nearby, and not shuttled to prisons around the state, we could better prepare them for trial.
Judge Port cut me off: “We are not in the horse-and-buggy era. You got up to Auburn all right. Proceed.”
While it’s impossible to know how things would have turned out, I often wonder what would have happened at Attica in the fall of 1971 if Port had listened to reason regarding the transfer of prisoners. Perhaps that might have altered the events at Attica, because as it turns out, Port’s decision had its repercussions. A big part of the problem during the uprising at Attica, and one of the reasons we could get no traction between the inmates and prison authorities, was that the inmates were convinced that Commissioner Oswald’s word was worthless. Partly they came to believe that based on his failure to take any steps to alleviate their misery, and partly because members of the Auburn Six were transferred there to tell the tale.
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